ORDER
1
CRI BA 639/2022
MHCC020036742022
IN THE COURT OF SESSIONS FOR GREATER BOMBAY
AT MUMBAI
CRIMINAL BAIL APPLICATION NO.639 OF 2022
(CNR NO.: MHCC020036742022)
Mr. Mohammed Mushtaq ahmed
Age: 52 Yrs, Occ: Businesss,
Residing at :- 6-3-696/95/A,
Naveen Nagar Road, No. 12,
Banjara Hills, Hyderabad,
Telangana – 500 004.

…..Applicant/Accused
V/s.
The State of Maharashtra – EOW
(vide C.R.No.93/2021)
……Respondent/State.

Appearance:Shri. Manan Sanghai, Advocate for the applicant/Accused.
Smt. Seema Deshpande, Addl. PP for the State/respondent.
CORAM : H.H. THE ADDL. SESSIONS JUDGE
DEEPAK L. BHAGWAT (C.R.60)
DATE
: 08.04.2022
ORDER
Vide present application u/s. 439 of Code of Criminal
Procedure the accused/ applicant requested to grant regular bail in his
favour in Cr No. 93 of 2021 registered at EOW Unit-V for offences
punishable u/s. 409, 420, 465 467, 468 ,471 r/w section 34 of Indian
ORDER
2
CRI BA 639/2022
Penal Code and section 4,8,13 of Maharashtra Ownership of Flats Act
(in short referred to as ‘MOFA’).
02.

The prosecution case in brief is that the informant’s
companies by purchasing certain properties at Hyderabad, entered into
development agreement with FIMA Properties company, of which
accused Mushtaq Ahmed and accused Mohd. Arif were the directors,
whereby FIMA Company was to develop the land. The accused also
obtained certain amounts from the informant. However, the accused
misappropriated the amount for own benefits. The accused also by
forging board resolution of the informant’s company used the same for
supplementary agreement. Thus, the accused committed criminal
breach of trust and forgery and cheated the informant for Rs.
45,00,00,000/-.
03.

The Ld. Advocate on behalf the accused argued that
disputed project is at Hyderabad and 95% construction has been
completed. Admittedly, there has been delay in the project. However,
the accused would complete the project within short period. He argued
that in the order in Revision Petition No. 235 of 2022 the Sessions
Court Room No. 37 observed that further custodial interrogation of the
accused is not necessary. Though, there are forgery allegations, it is not
easy to forge registered documents. Further, first informant is the
beneficiary and not the accused by the said supplementary agreement/
deed of allotment wherein the said board of resolution is used because
the first informant’s area has been demarcated by the same document.
The dispute is of civil nature. There has been delay in lodging the FIR as
the FIR is lodged in 2021 though the matter is of 2007. The dispute is
ORDER
3
CRI BA 639/2022
arbitrable. The accused are ready to give to the informant his share. The
requisite documents including the board resolutions are already
obtained by the investigating machinery. There is no possibility that the
applicant will abscond. Therefore, the Ld. advocate requested to allow
the application.
04.

On the other hand the Ld. APP argued that despite
obtaining money from the informant the accused deliberately delayed
the project. Board resolutions were forged and by using the same
supplementary agreement/deed of allotment has been executed.
Though the transaction started in 2007, forgery has been committed
later. The informant got the knowledge of the same forgery in 2021 and
thereupon, the FIR has been lodged. Also, several other people have
been cheated by the accused. Investigation is in progress. Therefore, Ld.
APP requested to reject the application.
05.

At present, it does not seem to be disputed that by
executing development agreement the informant conferred rights of
development upon the accused. Also, it is not disputed that the project
has been delayed. However, the material aspect is the allegation
regarding forgery of the board resolutions. The informant claims the
board resolutions used in the supplementary agreement/allotment deed
are forged as the same do not contain real signatures of the informant.
The investigation papers also contain the genuine letter heads of the
informant’s companies. Having perused the same at present it seems
that the letter heads used for the forged board resolutions do not match
with the genuine letter heads. It is apparent that the board resolutions
have been forged. True that by the same supplementary agreements it is
ORDER
4
CRI BA 639/2022
mentioned that excess area is being given to the informant. However, it
does not seem that the same supplementary agreements were ever
communicated to the informant or brought to the knowledge of the
informant. It seems that the supplementary agreements were made only
to keep a paper. Now, what was the benefit to be taken by the accused
of the same is yet to be revealed. The investigation is at very
preliminary stage and it will be too early to say that the supplementary
agreements were demarcating the area of the informant and as such the
forgery was without any dishonest intention. Once it is made out that
the board resolutions were forged there must be some object in the
same. The same dishonest object will come to light with the progress of
the investigation. It may also be noted that the accused have also sold
certain flats to others namely ‘Subishi’, ‘Yeram Vijay’ etc., which flats
were allotted to the share of the informant. Thus, the accused also
committed cheating.
06.

It is also argued that at one place the informant alleges that
amount of Rs.16,28,53,854/- was given to the accused and at other
place the informant mentions that it paid amount of Rs.18,51,01,000/-.
It is true that the agreement of 2013 mentions that the amount of Rs.
16,28,53,854/- was paid to the accused. However, the investigation
papers revealed that actually amount of Rs. 18,51,01,000/- was paid to
the accused. It is also contended on behalf of the accused that the same
amount was given for removal of encroachment but on comparison of
the survey numbers alleged to be of the alleged encroachers and the
survey numbers of the properties of the informant, the same do not
match. Though, it is contended that the dispute is of civil nature and
arbitrable only, the facts if considered it would clearly reveal that the
ORDER
5
CRI BA 639/2022
same also involved commission of offences of cheating misappropriation
and forgery by the accused. Therefore, the dispute cannot be said to be
of purely civil nature. As such pendency of any civil dispute and arbitral
proceedings will not affect the criminal proceedings. Suffice it to say
that there is prima-facie case against the accused. The investigation is
still in progress. Yet, other accused are to be arrested. Though, the
matter pertains to the transactions from 2007, as contended on behalf
of the prosecution as the informant got the knowledge of the forgery
recently, he lodged the FIR recently. At this stage, there is some
explanation as to why the FIR has been lodged recently. Considering
these facts and circumstances and that the matter relates to large
amount of money involving complex facts to be investigated and that
the investigation is still at preliminary stage, at this stage this court is
not inclined to grant bail to accused.
07.

The Ld. advocate relied on the list of following Judgments.
List of Judgments
Sr. No.

Judgments
01.

Sanjay Chandra V/s Central Bureau of Investigation (2021) 1
SCC 40
02.

P. Chidambaram V/s Directorate of Enforcement (2020) 13 SCC
791
03.

Gudikanti Narsimhulu & Ors V/s Public Prosecutor, High Court
of Andhra Pradesh (1978) 1 SCC 240
04.

Sayed Yaseer Ibrahim V/s State of UP & Anr.

05.

Mitesh Kumar J. Shah V/s The State of Karnataka
06.

Satender Kumar Antil V/s Central Bureau of Investigation & Anr
(2021) 10 SCC 773
ORDER
08.

6
CRI BA 639/2022
I have carefully gone through the decisions in the given
cases. In the case of Sanjay Chandra, it is observed that the object of
bail is neither punitive nor preventive and deprivation of liberty must be
considered as a punishment. In the case of P. Chidambaram, it is held
that it is not rule that bail cannot be granted in economic offences. In
the case of Gudikanti, it is observed that personal liberty of an accused
is fundamental. In the case of Sayed Yasir, bail was granted as it was a
dispute of civil nature. In the case of Mitesh Kumar, also, the dispute
was of civil nature. In the case of Satender Kumar, it is held that it is
not that economic offences are completely taken out of the guidelines
laid down in the case of Sanjay Chandra. However, in the case in hand,
the
matter
involves
commission
of
offences
of
cheating,
misappropriation and forgery involving huge amount. Yet, investigation
is in progress. In this background the decisions relied on are not helpful
to the applicant.
09.

As already noted, at this stage this court is not inclined to
grant bail. Hence, order as follows is passed.
ORDER
1. Criminal Bail Application No.639 of 2022 is rejected.
DEEPAK
LAXMANRAO
BHAGWAT
Date : 08.04.2022
Digitally signed by
DEEPAK
LAXMANRAO
BHAGWAT
Date: 2022.05.09
13:07:40 +0530
(Shri. Deepak L. Bhagwat)
Addl. Session Judge
Sessions Court,
Mumbai. C.R. 60
ORDER
Dictated on
Transcribed on
Date of sign
7
: 08.04.2022
: 08.04.2022
: 05.05.2022
CRI BA 639/2022
ORDER
8
CRI BA 639/2022
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
09.05.2022 01:20 p.m.
UPLOAD DATE AND TIME
Mr. Prasad Pednekar
NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)

HHJ Deepak L. Bhagwat,(C.R.No.60)
Addl. Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 08.04.2022
Order signed by P.O. on
09.05.2022
order uploaded on
09.05.2022